New
technologies change what we can do. Sometimes they make what
we want
to do easier. After writing a book with a word processor, one
wonders
how it was ever done without one. Sometimes they make what
someone
else is doing easier – and make it harder for us to prevent
him
from doing it. Enforcing copyright law became more difficult
when
photo typesetting made the cost of producing a pirated edition
lower
than the cost of the authorized edition it competed with, and
more
difficult again when inexpensive copying put the tools of
piracy in
the hands of any college professor in search of reading
material for
his students. As microphones and video cameras become smaller
and
cheaper, preventing other people from spying on me becomes
harder.

The obvious
response
is to try to keep doing what we have been doing. If that is
easier,
good. If it is harder, too bad. The world must go on, the law
must be
enforced. Let justice be done, though the sky fall.

Obvious – and
wrong. The laws we have, the ways we do things, are not handed
down
from heaven on tablets of stone. They are human contrivances,
solutions to particular problems, ways of accomplishing
particular
ends. If technological change makes a law hard to enforce, the
best
solution is sometimes to stop enforcing it. There may be other
ways
of accomplishing the same end – including some enabled by the
same
technological change. The question is not how to continue to
do what
we have been doing but how best to achieve our objectives
under new
circumstances.

Insofar as this
book
has a theme, that is it.

A
SIMPLE EXAMPLE: THE DEATH OF COPYRIGHT

Copyright
law gives the author of a copyrightable work the right to
control who
copies it. If copying a book requires an expensive printing
plant
operating on a large scale, that right is reasonably easy to
enforce.
If every reader owns equipment that can make a perfect copy of
a book
at negligible cost, enforcing the law becomes very nearly
impossible.

So far as
printed
material is concerned, copyright law has become less
enforceable over
the past century but not yet unenforceable. The copying
machines most
of us have access to can reproduce a book, but the cost is
comparable
to the cost of buying the book and the quality worse.
Copyright law
in printed works can still be enforced, even if less easily
than in
the past.

The same is not
true
for intellectual property in digital form. Anyone with a CD-R
drive
can copy a $400 program onto a one-dollar CD. Anyone with a
reasonably fast internet connection can copy anything
available
online, anywhere in the world, to his hard drive.

Under those
circumstances enforcing copyright law against individual users
is
very nearly impossible. If my university decides to save on
its
software budget by buying one copy of Microsoft Office and
making
lots of copies, a discontented employee with Bill Gates’ email
address could get us in a lot of trouble. But if I choose to
provide
copies to my wife and children – which under Microsoft’s
license
I am not permitted to do – or even to a dozen of my friends,
there
is in practice little that Microsoft can do about it.1

That could be
changed. If we wanted to enforce present law badly enough, we
could
do it. Every computer in the country would be subject to
random
search. Anyone found with an unlicensed copy of software would
go
straight to jail. Silicon Valley would empty and the prisons
would
fill with geeks, teenagers, and children.

Nobody regards
that
as a tolerable solution to the problem. Although there has
been some
shift recently in the direction of expanded criminal
liability
for copyright infringement, software companies for the most
part take
it for granted that they cannot use the law to prevent
individual
copying of their programs and so have fallen back on other
ways of
getting rewarded for their efforts.

Holders of
music
copyrights face similar problems. As ownership of tape
recorders
became common, piracy became easier. Shifting to CDs
temporarily
restored the balance, since they provided higher quality than
tape
and were expensive to copy – but then cheap CD recorders and
digital audio tape came along. Most recently, as computer
networks
have gotten faster, storage cheaper, and digital compression
more
efficient, the threat has been from online distribution of MP3
files
encoding copyrighted songs.

Faced with the
inability to enforce copyright law against individuals, what
are
copyright holders to do? There are at least three answers.

1.
Substitute technological protection for legal protection.

In
the early days of home computers, some companies sold their
programs
on disks designed to be uncopyable. Consumers found this
inconvenient, either because they wanted to make copies for
their
friends or because they wanted to make backup copies for
themselves.
So other software companies sold programs designed to copy the
copy-protected disks. One company produced a program
(SuperUtility
Plus) designed to do a variety of useful things, including
copying
other companies’ protected disks. It was itself
copy-protected. So
another company produced a program (SuperDuper) whose sole
function
in life was to make copies of SuperUtility Plus.

Technological
protection continues in a variety of forms. All face a common
problem. It is fairly easy to provide protection sufficient to
keep
the average user from using software in ways that the producer
does
not want him to use it. It is very hard to provide protection
adequate against an expert. And one of the things experts can
do is
to make their expertise available to the average user in the
form of
software designed to defeat protection schemes.

This suggests a
possible solution: technological protection backed up by legal
protection against software designed to defeat it. In the
early
years, providers of copy protection tried that approach. They
sued
the makers of software designed to break the protection,
arguing that
they were guilty of contributory infringement (helping other
people
copy copyrighted material), direct infringement (copying and
modifying the protection software in the process of learning
how to
defeat it), and violation of the licensing terms under which
the
protection software was sold. They lost.2

More recently,
owners of intellectual property successfully supported new
legislation – Section 1201 of the Digital Millennium Copyright
Act
– which reverses that result, making it illegal to produce or
distribute software whose primary purpose is defeating
technological
protection. It remains to be seen whether or not that
restriction
will itself prove enforceable.

2.
Control only large-scale copying.

Anyone
with a video recorder, some additional hardware, and a little
expertise can copy videos for his friends.3
Nonetheless, video rental stores remain in business. They
inexpensively provide their customers with a much larger
selection
than they could get by copying their friends’ cassettes. The
stores
themselves cannot safely violate copyright law, buying one
cassette
for 100 outlets, because they are large, visible
organizations. So
producers of movies continue to get revenue from
videocassettes
despite the ability of customers to copy them.

There is no
practical way for music companies to prevent one teenager from
making
copies of a CD or a collection of MP3s for his friends, but
consumers
of music are willing to pay for the much wider range of choice
available from a store. The reason Napster threatened the
music
industry was that it provided a similar range of choice at a
much
lower cost. The situation is similar for computer programs. As
long
as copyright law can be used to prevent large-scale piracy,
customers
are willing to pay for the convenience provided by a legal
(hence
large-scale and public) source for their software. In both
cases, the
ability of owners of intellectual property to make piracy
inconvenient enough to keep themselves in business is
threatened by
the internet, which offers the possibility of large-scale
public
distribution of pirated music and software.

3.
Permit copying; get revenues in other ways.

Most
successful lecturers will in whispered tones confide to you
that
there is no other journalistic or pedagogical activity more
remunerative – a point made by Mark Twain and Winston
Churchill.

A century ago,
prominent authors got a good deal of their income from public
lectures. Judging by the quote from Buckley – and my own
experience
– some still do. This suggests that in a world without
enforceable
copyright, some authors could write books, provide them online
to
anyone who wanted them, and make their living selling services
to
their readers – public lectures, consulting services, or the
like.
This is not a purely conjectural possibility. Currently I
provide the
full text of four books and numerous articles on my web page,
for
free – and receive a wide range of benefits, monetary and
nonmonetary, by doing so.

This is one
example
of a more general strategy: Give away the intellectual
property and
get your income from it indirectly. That is how both of the
leading
web browsers were at one time provided. Netscape gave away
Navigator
and sold the server software that Navigator interacted with;
Microsoft followed a similar strategy. Apple provided a
competing
browser – which was (and is) available for free, but only ran
on
Apple computers. Currently a variety of other browsers are
open
source, an approach to creating software discussed in a later
chapter. It is also how radio and television programs pay
their
bills; give away the program and get revenue from the ads.

As these
examples
show, the death of copyright does not mean the death of
intellectual
property. It does mean that producers of intellectual property
must
find other ways of getting paid for their work. The first step
is
recognizing that, in the long run, simply enforcing existing
law is
not going to be an option.

DEFAMATION
ONLINE: A LESS SIMPLE EXAMPLE

A
newspaper publishes an article asserting that I am a wanted
criminal,
having masterminded several notorious terrorist attacks.
Colleagues
find themselves otherwise engaged when I propose going out to
dinner.
My department chair assigns me to teach a course on Sunday
mornings
with an enrollment of one. I start getting anonymous phone
calls. My
recourse under current law is to sue the paper for libel,
forcing
them to retract their false claims and compensate me for
damage done.

Implicit in the
legal solution to defamation are two assumptions. One is that
when
someone makes a false statement to enough people to do serious
damage, the victim can identify either the person who made the
statement or someone else responsible for his making it – the
newspaper if not the author. The other is that at least one of
the
people identified as responsible will have enough assets to be
worth
suing.

Twenty years
ago,
both assumptions were usually true. The reporter who wrote a
defamatory article might be too poor to be worth suing, but
the
newspaper that published it was not – and could reasonably be
held
responsible for what it printed. It was possible to libel
someone by
a mass mailing of anonymous letters, but a lot of trouble to
do it on
a large enough scale to matter to most victims.

Neither is true
any
longer. It is possible, with minimal ingenuity, to get access
to the
internet without identifying yourself. With a little more
technical
expertise, it is possible to communicate online through
intermediaries–anonymous remailers–in such a way that the
message
cannot be linked to the sender. Once online, there are ways to
communicate with large numbers of people at near zero cost:
mass
email, posts on Usenet news, a page on the worldwide web. And
if you
choose to abandon anonymity and spread lies under your own
name,
access to the internet is so inexpensive that it is readily
available
to people without enough assets to be worth suing.

One possible
response is that we must enforce the law whatever it takes. If
the
originator of the defamation is anonymous or poor, find
someone else,
somewhere in the chain of causation, who is neither. In
practice,
that probably means identifying the internet service provider
(ISP)
through whom the message passed and holding him liable. A web
page is
hosted on some machine somewhere; someone owns it. An email
came at
some point from a mail server; someone owns that.

That solution
makes
no more sense than holding the U.S. Post Office liable for
anonymous
letters. The publisher of a newspaper can reasonably be
expected to
know what is appearing in his pages. But an ISP has no
practical way
to monitor the enormous flow of information that passes
through its
servers – and if it could, we wouldn’t want it to. We can – in
the context of copyright infringement we do – set up
procedures
under which an ISP can be required to take down webbed
material. But
that does no good against a Usenet post, mass email, webbed
defamation hosted in places reluctant to enforce U.S. law, or
defamers willing to go to the trouble of hosting their web
pages on
multiple servers, shifting from one to another as necessary.
Defamation law is of very limited use for preventing online
defamation.

There is – has
always been – another solution to the problem. When people
tell
lies about me, I answer them. The technological developments
that
make defamation law unenforceable online also make possible
superb
tools for answering lies and thus provide a substitute,
arguably a
superior substitute, for legal protection.

My favorite
example
is Usenet
News, a part of the internet older and less well known
than
the web. To the user it looks like a collection of online
bulletin
boards, each on a different topic: anarchy, short-wave radios,
architecture, cooking history. When I post a message to a
newsgroup,
the message goes to a computer (a news server) provided by my
ISP.
The next time that news server talks to another they exchange
messages – and mine spreads gradually across the world. In an
hour,
it may be answered by someone in Finland or Japan. The server
I use
hosts more than 100,000 groups. Each is a collection of
conversations
spread around the world – a tiny nongeographical community
united,
and often divided, by common interests.

Google, which
hosts
a popular web search engine,
also provides a search
engine
for Usenet. Using it I can discover in less than a
minute
whether anyone has mentioned my name anywhere in the world any
time
in the last three days – or weeks, or years – in any of more
than
100,000 newsgroups. If I get a hit, one click brings up the
message.
If I am the David Friedman mentioned (the process would be
easier if
my name were Myron Whirtzlburg), and if the message requires
an
answer, a few more clicks put my response in the same thread
of the
same newsgroup, where almost everyone who read the original
post will
see it. It is as if, when anyone slandered me anywhere in the
world,
the wind blew his words to me and my answer back to the ears
of
everyone who had heard them.

The protection
Usenet offers against defamation is not perfect; a few people
who
read the original post may miss my reply and more may choose
not to
believe it. But the protection offered by the courts is
imperfect
too. Most damaging false statements are not important enough
to
justify the cost and trouble of a lawsuit. Many that are do
not meet
the legal requirements for liability. Given the choice, I
prefer
Usenet.

Suppose that
instead
of defaming me on a newsgroup you do it on a web page. Finding
it is
easy – Google provides a search engine for the web too. The
problem
is how to answer it. I can put up a web page with my answer
and hope
that sufficiently interested readers will come across it, but
that is
all I can do. The links on your web page are put there by you,
not by
me – and you may be reluctant to add one to the page that
proves
you are lying.

There is a
solution
to this problem, a technological solution. Current web
browsers show
only forward links – links from the page being read to other
pages.
It would be possible to build a web browser, say Netscape
Navigator
12.0, that automatically showed backlinks, letting the user
see not
only what pages the author of this page chose to link to but
also
what pages chose to link to it.5
Once such browsers are in common use, I need only put up a
page with
a link to yours. Anyone browsing your page with the backlink
option
turned on will be led to my rebuttal.6

There is a
problem
with this solution – a legal problem. Your web page is covered
by
copyright, which gives you the right to forbid other people
from
making either copies or derivative works. A browser that
displays
your page as you intended is making a copy, but one to which
you have
given implicit authorization by putting your page on the web.
A
browser that displays your page with backlinks added is
creating a
derivative work – one that you may not have intended and,
arguably,
did not authorize. To make sure your lies cannot be answered,
you
notify Netscape that they are not authorized to display your
page
with backlinks added.

The issue
of when
one web page is an unauthorized derivative work of another is
currently being fought out in the context of “framing”
– one
web site presenting material from another along with its own
advertising.7
If my view of online defamation is correct, the outcome of
that
litigation may be important to an entirely different set of
issues.
The same legal rule (a strong reading of the right to prevent
derivative works online) that would protect a site from other
people
free riding on its content would also provide protection to
someone
who wants to spread lies online.

Unsteady
Ground

My mother was a test
tube, my
father was a knife.

Friday,
Robert A. Heinlein

Technological
changes alter the cost of doing things. But they may also
affect us
in a more subtle way by making obsolete the categories we use
to talk
and think about the world around us.

Consider the
category of “parent.” It used to be that, although there might
be
some uncertainty about the identity of a child’s father, there
was
no question what “father” and “mother” meant. Laws and social
norms specifying the rights and obligations of fathers and
mothers
were unambiguous in meaning, if not always in application.

That is no
longer
the case. With current reproductive technology there are at
least two
biological meanings of “mother” and will soon be a third. A
gestational mother is the woman in whose womb a fetus was
incubated.
An egg mother is the woman whose fertilized egg became the
fetus.
Once human cloning becomes an established technology, a
mitochondrial
mother will be the woman whose egg, with its nucleus replaced
by the
nucleus of the clone donor but with its own extranuclear
mitochondrial DNA, developed into the fetus. And once genetic
engineering becomes a mature technology, permitting us to
produce
offspring whose DNA is a patchwork from multiple donors, the
concept
of “a” biological mother (or father) will be very nearly
meaningless.

THE
CHILD WITH FIVE PARENTS

A
California couple wanted a child. The husband was sterile. His
wife
was doubly sterile – she could neither produce a fertile egg
nor
bring a fetus to term. They contracted with a sperm donor, an
egg
donor, and a gestational mother. The donated egg was
impregnated with
the donated sperm and implanted in the rented womb. Then,
before the
baby was born, their marriage broke up, leaving the courts
with a
puzzle: What person or persons had the legal rights and
obligations
of parenthood?

Under
California law
read literally, the answer was clear. The mother was the woman
from
whose body the child was born. The father was her husband.
That was a
sensible enough legal rule when the laws were written. But it
made no
sense at all in a world where neither that woman nor her
husband
either was related to the child or had intended to parent it.

The court that
finally decided the issue held that the parents were the
couple who
had set the train of events in motion, intending at that time
to rear
the child as their own.8They thus substituted for a biological definition that
had
become technologically obsolete a social definition –
motherhood by
neither egg nor womb but by intention.

This is a true
story. If you don’t believe me, go to a law library and look
up
John A. B. v. Luanne H. B.
(72 Cal. Rptr. 2d 280 (Ct. App. 1998)).9

THE
LIVING DEAD

Consider
someone whose body is preserved at the temperature of liquid
nitrogen
while awaiting the medical progress needed to revive and cure
him.
Legally he is dead; his wife is a widow, his heirs have his
estate.
But if he is in fact going to be revived, then in a very real
sense
he is not dead – merely sleeping very soundly. Our legal
system,
more generally our way of thinking about people, takes no
account of
the special status of such a person. There is a category of
alive, a
category of dead, and – outside of horror movies and computer
games
– nothing between them.10

The absence of
such
a category matters. It may, quite literally, be a matter of
life and
death.

You are dying
of a
degenerative disease that will gradually destroy your brain.
If you
are cured today, you will be fine. If you are cured a year
later,
your body may survive but your mind will not. After
considering the
situation, you decide that you are more than willing to trade
a year
of dying for a chance of getting back your life. You call up
the
Alcor Life Extension Foundation and ask them to arrange to
have your
body frozen – tomorrow if possible.

They reply that
while they agree with your decision they cannot help you. As
long as
you are legally alive, freezing you is legally murder. You
will
simply have to wait another year until you are declared
legally dead
and hope that somehow, some day, medical science will become
capable
of reconstructing you from what by that time is left.

This too is,
allowing for a little poetic license, a true story. In Donaldson
v.
Van de Kamp,11
Thomas Donaldson went to court in an unsuccessful attempt to
get
permission to be frozen before, rather than after, his brain
was
destroyed by a cancerous tumor.

The issues
raised by
these cases – the meaning of parenthood and of death – will be
discussed at greater length in later chapters. Their function
here is
to illustrate the way in which technological change alters the
conceptual ground under our feet.

All of us deal
with
the world in terms of approximations. We describe someone as
tall or
short, kind or cruel, knowing that the former is a matter of
degree
and the latter both of degree and of multiple dimensions. We
think of
the weather report as true, although it is quite unlikely that
it
provides a perfectly accurate description of the weather, or
even
that such a description is possible. When the weatherman says
the
temperature is seventy degrees in the shade, just which square
inch
of shade is he referring to? We classify a novel as fiction
and this
book as nonfiction, although quite a lot of the statements in
the
former are true and some in the latter are false.

Dealing with
the
world in this way works because the world is not a random
assemblage
of objects; there is pattern to it. Temperature varies from
one patch
of shade to another, but not by very much. Although a
statement about
“the” temperature in the shade may not be precisely true, we
rarely lose much by treating it as if it were. Similarly for
the
other useful simplifications of reality that make possible
both
thought and communication.

When the world
changes enough, some simplifications cease to be useful. It
was
always true that there was a continuum between life and death;
the
exact point at which someone is declared legally dead is
arbitrary.
But, with rare
exceptions, it was arbitrary to within seconds, perhaps
minutes –
which almost never mattered. When it is known that, for a
large
number of people, the ambiguity not only exists but will exist
for
decades, the simplification is no longer useful. It may, as
could
have happened in the case of Thomas Donaldson, become lethal.

It’s
Not Just Law, It’s Life

So
far my examples have focused on how legal rules should respond
to
technological change. But similar issues arise for each of us
in
living his or her own life in a changing world. Consider, for
a story
now in part played out, the relations between men and women.

THE
DECLINE OF MARRIAGE

For
a very long time, human societies have been based on variants
of the
sexual division of labor. All started with a common
constraint: women
bear and suckle children, men do not. For hunter-gatherers,
that
meant that the men were the hunters and the women, kept
relatively
close to camp by the need to care for their children, the
gatherers.
In more advanced societies that became, with many variations,
a
pattern where women specialized in household production and
men in
production outside the household.

A second
constraint
was the desire of men to spend their resources on their own
children
rather than on the children of other men – a desire rooted in
the
fact that Darwinian selection has designed organisms,
including human
males, to be good at passing down their own genes to future
generations.12
Since the only way a man could be reasonably confident that he
was
the father of a particular child was for the child’s mother
not to
have had sex with other men during the period when it was
conceived,
the usual arrangement of human societies, with a few
exceptions, gave
men sexual exclusivity. One man might under some circumstances
sleep
with more than one woman but one woman was supposed to, and most
of
the time did, sleep with only one man.

Over the past
few
centuries two things have sharply altered the facts that led
to those
institutions. One was the decline in infant mortality. In a
world
where producing two or three adult children required a woman
to spend
most of her fertile years bearing and nursing, the sexual
division of
labor was sharp – one profession, “mother,” absorbed close to
half the labor force. In today’s world, a woman need bear only
two
babies in order to end up with two adult children.13

A second
change, the
increased division of labor, has drastically reduced the
importance
of household production. You may still wash your own clothes,
but
most of the work was done by the people who built the washing
machine. You may still cook your own dinner, but you are
unlikely to
cure your own ham or make your own soap. That change
eliminated a
good deal of what wives traditionally did, freeing women for
other
activities.14

As being a wife
and
mother went from a full- to a part-time job, human
institutions
adjusted. Market employment of women increased. Divorce became
more
common. The sexual division of labor, while it still exists,
is much
less sharp – many women do jobs that used to be done almost
exclusively by men, some men do jobs that used to be done
almost
exclusively by women.

THE
FUTURE OF MARRIAGE

One
consequence of married women working largely outside of the
home is
to make the enforcement of sexual exclusivity, never easy,15
very nearly impossible. Modern societies developed a social
alternative: companionate marriage. A wife who is your best
friend
instead of your subordinate or slave is less likely to want to
cheat
on you, a good thing if you have no practical way of stopping
her.
Modern society also produced, somewhat later, a technological
alternative: paternity testing. It is now possible for a
husband to
know whether his wife’s children are his even if he is not
confident that he is her only sexual partner.

This raises
some
interesting possibilities. We could have – are perhaps moving
toward – a variant of conventional marriage institutions in
which
paternal obligations are determined by biology, not marital
status.
We could have a society with group marriages but individual
parental
responsibilities, since a woman would know which of her
multiple
husbands had fathered any particular child. We could have a
society
with casual sex but well-defined parental obligations –
although
that raises some practical problems. It is much easier for a
couple
to share parental duties if they are also living together, and
the
fact that two people enjoy sleeping together is inadequate
evidence
that they will enjoy living together.

All of these
mating
patterns exist already (for a partial sample, see the Usenet
newsgroup alt.polyamory). Whether any become common will
depend in
large part on the nature of male sexual jealousy. Is it
primarily a
learned pattern, designed to satisfy an instinctual preference
for
one’s own children? Or is it itself instinctual, hardwired by
evolution as a way of improving the odds that the children a
male
supports carry his genes?16
If the former, then once the existence of paternity testing
makes
jealousy obsolete we can expect its manifestations to vanish,
permitting a variety of new mating patterns. If the latter,
jealousy
is still obsolete but, given the slow pace of evolutionary
change,
that fact will be irrelevant to behavior for a very long time,
hence
we can expect to continue with some variant of monogamy, or at
least
serial polygamy, as the norm.

The basic
principle
here is the same as in earlier examples of adjustment to
technological change. Our objective is not to save marriage.
It is to
accomplish the purposes that marriage evolved to serve. One
way is to
continue the old pattern even though it has become more
difficult –
as exemplified by the movement for giving couples the option
of
covenant marriage, marriage on something more like the old
terms of
“till death do us part.” Another is to take advantage of
technological change to accomplish the old objective –
producing
and bringing up children – in new ways.

DOING
BUSINESS ONLINE

Technology
affects law and love. Also business. Consider the problem of
contract
enforcement.

Litigation has
always been a clumsy and costly way of enforcing contractual
obligations. It is possible to sue someone in another state,
even
another country – but the more distant the jurisdiction, the
harder
it is. If online commerce eventually dispenses with not only
geography but real-world identity, so that much of it occurs
between
parties linked only to an identity defined by a digital
signature,
enforcing contracts in the courts becomes harder still. It is
difficult to sue someone if you do not know who he is.

There is an old
solution – reputation. Just as in the case of defamation, the
same
technology that makes litigation less practical makes the
private
substitute more practical.

eBay provides a
low-tech example. When you win an auction and take delivery of
the
goods, you are given an opportunity to report on the result –
did
the seller deliver when and as scheduled, were the goods as
described? The reports on all past auctions by a given seller
are
available, both in full and in summary form, to anyone who
might want
to bid on that seller’s present auctions. In a later chapter
we
will consider more elaborate mechanisms, suitable for higher
stakes
transactions, by which modern information technology can use
reputational enforcement to substitute for legal enforcement.

BRAKES?
WHAT BRAKES?

When
considering the downside of technologies – Murder Incorporated
in a
world of strong privacy or some future James Bond villain
using
nanotechnology to convert the entire world to gray goo – your
reaction may be “Stop the train, I want to get off!” In most
cases, that is not an option. This particular train is not
equipped
with brakes.

Most of the
technologies we are discussing can be developed locally and
used
globally. Once one country has a functional nanotechnology,
permitting it to build products vastly superior to those made
with
old technologies, there will be enormous pressure on other
countries
to follow suit. It is hard to sell glass windshields when the
competition is using structural diamond. It is even harder to
persuade cancer patients to be satisfied with radiation
therapy when
they know that, elsewhere in the world, microscopic cell
repair
machines are available that simply go through your body and
fix
whatever is wrong.

For an example
already played out, consider surrogacy contracts – agreements
by
which a woman bears a child, either from her own or another
woman’s
egg, for another couple to rear as their own. The Baby M case
established that such contracts are not enforceable, at least
in New
Jersey. State legislation followed, with the result that in
four
states merely signing such a contract is a criminal act and in
one,
Michigan, arranging a surrogacy contract is a felony
punishable by up
to five years and $50,000.

None of this
mattered very much. Someone who could afford the costs of
hiring a
surrogate mother, still more someone who could afford the cost
necessary to arrange for one mother to incubate another’s egg,
could almost certainly afford the additional cost of doing it
in a
friendly state. As long as there was one state that approved
of such
arrangements, the disapproval of others had little effect. And
even
if the contracts were legally unenforceable, it was only a
matter of
time before people in the business of arranging them learned
to
identify and avoid potential surrogate mothers likely to
change their
mind after the child was born.17

Or consider
research
into the causes of aging. Many people believe (I think
mistakenly)
that the world suffers from serious problems of
overpopulation.
Others argue (somewhat more plausibly) that a world without
aging
would risk political gerontocracy and cultural stasis.18
Many would – some do – argue that even if the problem of aging
can be solved, it ought not to be.

That argument
becomes less convincing the older you get. Old people control
large
resources, both economic and political. Although arguments
against
aging research may win out somewhere, they are unlikely to win
out
everywhere – and the cure only has to be found once.

For a more
disturbing example, consider artificial intelligence – a
technology
that might well make human beings obsolete. At each stage,
doing it a
little better means being better able to design products,
predict
stock movements, win wars. That almost guarantees that at each
stage,
someone will take the next step.

Even if it is
possible to block or restrict a potentially dangerous
technology, as
in a few cases it may be, it is not clear that we should do
it. We
might discover that we had missed the disease and banned the
cure. If
an international covenant backed by overwhelming military
power
succeeds in restricting nanotechnological development to
government-approved labs, that might save us from catastrophe.
But
since government-approved labs are the ones most likely to be
working
on military applications of new technology, while private labs
mostly
try to produce what individual customers want, the effect
might also
be to prevent the private development of nanotechnological
countermeasures to government-developed mass destruction. Or
it might
turn out that our restrictions had slowed the development of
nanotechnology by enough to leave us unable to defend against
the
result of a different technology – a genetically engineered
plague,
for example.

There are
legitimate
arguments for trying to slow or prevent some of these
technological
developments. Those arguments will be made,19
but not here. For my purposes, it is more interesting to
assume that
such attempts, if made, will fail, and try to think through
the
consequences – how new technologies will change things, how
human
beings will and should adapt to those changes.

Technological
progress means learning more about how to do things; on the
face of
it, one would expect that to result in an improvement in human
life.
So far, with few or no exceptions, it has. Despite a multitude
of
dire prophecies over the past two centuries, human life almost
everywhere is better today than it was 50 years ago, better 50
years
ago than 100 years ago, and better 100 years ago than 200
years ago.20

Past experience
is
not always a reliable guide to the future. Despite the
progress of
the past 200 years, quite a number of people continue to
predict
future catastrophe from present progress – including a few
sufficiently well informed and competent to be worth taking
seriously. In my final chapter, I will return to the question
of
whether, how, and under what circumstances they might be
right.

Footnotes

1 Unless two of them are being used
on the
same network; some versions of Office refuse to run if they can
see
another copy with the same serial number.

3 VCRs incorporate circuitry to
detect
'Macrovision' signals. These signals are included on
pre-recorded video
cassettes (for the technically oriented, they place pulsating
stepped
square waves in the video blanking intervals). When a VCR
detects the
macrovision signal coming in on its input, it interferes with
recording, most commonly by randomly varying the brightness
level of
the picture to make for an unpleasant viewing experience.

Macrovision can be overcome, but only at
additional
expense, usually by 'cleaning' the video signal with a
euphemistically
entitled 'video enhancer'. So the casual user cannot copy
videos. The
enthusiast can. [From a commenter on the webbed
version of the
book]

5 You can get that information
already by
using Google to search for pages that link to a particular page.
That
is possible because Google has already indexed the entire web
and so
has a complete list of links – readable from either end. A
back-link
browser would use such an index to locate back-links to display.
One
current project along those lines is Crit .

6 Such a system already exists in a
very
early form – the “trackback” system used by bloggers. Currently
trackbacks are voluntary on the linked-to side, but if browsers
polled
the trackback servers themselves, they could display the links
in a
sidebar, without requiring any action by the linked-to site.

7 A possible future development
along
similar lines is a news
service
that uses
other people’s webbed information to automatically generate
custom news
for each customer.

12 Some excerpts
from Dawkins The Selfish Gene,
my favorite source on evolutionary biology, are available
online, as
well as an introduction
to the subject that seems to have originated on the Usenet group
talk.origins. There is also an online
version of The
Adapted Mind,
the book that got me interested in evolutionary psychology.

14 “Let us accept the idea that
women
should stick to their own jobs – the jobs they did so well in
the good
old days before they started talking about votes and women’s
rights. …
It is a formidable list of jobs: The whole of the spinning
industry,
the whole of the dying industry, the whole of the weaving
industry. The
whole catering industry and – what would not please Lady Astor,
perhaps
– the whole of the nation’s brewing and distilling. All the
preserving,
pickling, and bottling industry, all the bacon-curing. And
(since in
those days a man was often absent from whom for months together
on war
or business) a very large share in the management of landed
estates.
Here are the women’s jobs … .” Dorothy Sayers (1947, p. 133).

15 “An
English Padlock” by Mathew Prior
is a
verse argument for companionate marriage as a solution to this
problem.
The poet runs through all of the precautions by which a jealous
husband
can try to keep his wife faithful and the ways in which a wife
can, if
she wishes, defeat all of them, and concludes, “Let all her ways
be
unconfined/And clap your padlock on
her
mind.”

16 I limit myself to male sexual
jealousy
not because female sexual jealousy does not exist but because
the
relevant technology has not changed – a woman’s knowledge that a
child
is hers never depended on knowing whether its father had been
sleeping
with other women.

20 Quite a lot of evidence against
the
thesis that things have been getting worse in recent decadeshas
been
provided by Julian Simon.
Two good, although somewhat old, sources on the effect of the
industrial revolution, sometimes claimed as an example of
decline in
human life, are Hayek et. al. 1954, and Ashton 1961. Readers who are more familiar
than I am
with the more recent literature are invited to email me
suggestions.

It has, however, been
argued that the invention of agriculture may have made people
worse
off; the new technology could support much denser population,
which
tended to displace the competing hunter-gatherers, but did it
with a
less attractive lifestyle. (Diamond,
1987,
pp. 64–66).